Can Therapists Start a Union? The Antitrust Trap, the Shadow Committee, and the Economic Strangulation of American Psychotherapy Analyzing America’s Healthcare Regulations and Their Effect on Us: Why the Law Prevents Therapists from Organizing While Allowing a Private Committee to Fix Prices for the Entire Medical System https://gettherapybirmingham.com/can-therapists-start-a-union-spoiler-alert-they-cant/ The Monthly Rage Thread If you hang around therapist forums long enough, you will see it happen. It operates with the regularity of the tides. Someone posts a thread, usually after receiving a contract from an insurance company offering 1998 rates for 2025 work, and asks the obvious question: “We are the ones providing the care. The system collapses without us. Why don’t we just all go on strike? Why don’t we form a union and demand fair pay?” It is a logical question. In almost every other sector of the economy, workers who feel exploited band together to negotiate better terms. Screenwriters shut down Hollywood to get paid for streaming residuals. Auto workers walk off the line. Teachers fill the state capitol. Nurses at major hospital systems have successfully unionized and won significant concessions. So why, in the midst of a national mental health crisis, does the mental health workforce remain so politically impotent? The answer is not that we lack will. It is not that we lack organization. The answer is that for private practice therapists, forming a union is a federal crime. This is not a political manifesto. It is an analysis of the bizarre regulatory environment that governs American healthcare, a system of antitrust laws, shadow committees, and bureaucratic classifications that effectively strips clinicians of their bargaining power while empowering the corporations that pay them. If you want to understand why corporate tech monopolies are ruining therapy, or why the corporatization of healthcare feels so suffocating, you have to understand the legal straitjacket we are all wearing. And you have to understand the one group that is allowed to set prices, the one group exempt from the rules that bind the rest of us. Part I: You Are Not a Worker, You Are a Standard Oil Tycoon The primary reason therapists cannot unionize dates back to the era of oil barons and railroad tycoons. The Sherman Antitrust Act of 1890 was designed to prevent massive corporations like Standard Oil from colluding to fix prices and destroy the free market. It prohibits “every contract, combination… or conspiracy, in restraint of trade.” The law was a response to genuine abuses: companies buying up competitors, dividing territories, and coordinating prices to gouge consumers who had no alternatives. Here is the catch: In the eyes of the federal government, a private practice therapist is not a “worker.” You are a business entity. Even if you are a solo practitioner struggling to pay rent in a subleased office, seeing clients between crying in your car and eating lunch at your desk, the law views you as the CEO of a micro-corporation. You are classified as a 1099 independent contractor, not a W-2 employee, and that distinction makes all the difference in the world. If two workers at Starbucks talk about their wages and agree to ask for a raise, that is “collective bargaining,” which is protected by the National Labor Relations Act. But if two private practice therapists talk about their reimbursement rates and agree to ask Blue Cross for a raise, that is “price-fixing.” It is legally indistinguishable, in the eyes of the Federal Trade Commission, from gas stations conspiring to raise the price of unleaded. It sounds absurd, but the FTC takes it deadly seriously. When independent contractors organize to demand higher rates, when they share information about what they are being paid and coordinate their responses, they are engaging in horizontal price-fixing, one of the most serious violations of antitrust law. The Sherman Act provides for criminal penalties, including fines and imprisonment. The law that was meant to break up monopolies is now used to prevent social workers from asking for a cost-of-living adjustment. The irony is crushing. The same regulatory framework that prevents two therapists from discussing their rates allows massive insurance conglomerates to merge repeatedly, concentrating buyer power in fewer and fewer hands. UnitedHealth Group, for example, has acquired dozens of companies over the past two decades, becoming the largest healthcare company in the United States. When they offer a “take it or leave it” contract to providers, they do so with the full knowledge that fragmented, legally prohibited from organizing therapists have no counter-leverage. The antitrust laws, designed to prevent monopoly power, have created a system where sellers are atomized and buyers are consolidated. Economists call this “monopsony,” and it is precisely the market distortion the Sherman Act was supposed to prevent. Part II: The Day the “Learned Profession” Died For a long time, doctors and lawyers thought they were exempt from these laws. They argued that they were “learned professions,” not mere tradespeople, and therefore above the grubby laws of commerce. They believed that their ethical obligations to patients and clients set them apart from the rules that governed steel mills and meatpacking plants. Medicine was a calling, not a business, and surely the government would not regulate the sacred doctor-patient relationship as if it were a commercial transaction. That illusion was shattered in 1975 by the Supreme Court case Goldfarb v. Virginia State Bar. The case involved lawyers, not doctors, but its implications cascaded through every licensed profession in America. The Goldfarbs were purchasing a home and needed a title examination. The Virginia State Bar had established a minimum fee schedule for such services, and every lawyer they contacted quoted the exact same price. They sued, arguing that this fee schedule was illegal price-fixing. The Supreme Court agreed. In a unanimous decision, the Court ruled that professional services, including legal and medical advice, are “trade or commerce” subject to antitrust laws. The “learned profession” exemption, which had been assumed but never explicitly established in law, was declared a myth. “The nature of an occupation, standing alone,” the Court wrote, “does not provide sanctuary from the Sherman Act.” This ruling was intended to lower prices for consumers by preventing lawyers from setting minimum fees, and in that narrow sense it was a good thing. But in healthcare, it had a catastrophic side effect: it made it illegal for doctors and therapists to band together to resist the pricing power of insurance companies. The “learned profession” exemption is dead. We are now just businesses, and businesses are not allowed to hold hands. This creates the illusion of progress: we have “free market” competition among providers, but monopsony power among payers. It is a market where the sellers are forbidden from organizing, but the buyers are allowed to merge until they are too big to fail. The result is not a free market at all. It is a market designed to transfer wealth from one class (providers) to another (insurers and administrators), with the law itself serving as the enforcement mechanism. Part III: The Cartel in the Basement If therapists cannot collude to set prices, surely nobody else can, right? Wrong. There is one group in American healthcare that is allowed to meet in a room, decide what every doctor’s time is worth, and set prices for the entire industry. It is called the RUC, the AMA/Specialty Society Relative Value Scale Update Committee. And understanding the RUC is the key to understanding why talk therapy is dying in the medical model, why psychiatrists abandoned the couch for the prescription pad, and why your insurance company offers you a ghost network of providers who never answer the phone. The Birth of a Shadow Government To comprehend the current crisis in mental health economics, one must excavate the foundations of the physician payment system. Prior to 1992, Medicare reimbursed physicians based on a system known as “Customary, Prevailing, and Reasonable” charges. Under this system, physicians were paid based on their historical billing charges. It was inherently inflationary; it rewarded those who raised their fees most aggressively and created wide geographic disparities for identical services. In response to spiraling costs, Congress passed the Omnibus Budget Reconciliation Act of 1989, mandating a transition to a fee schedule based on the resources required to provide a service. This birthed the Resource-Based Relative Value Scale. The intellectual architecture for this system was developed by a team of economists at Harvard University, led by William Hsiao. Hsiao’s team sought to create a “unified theory” of medical value, attempting to quantify the “work” involved in disparate medical acts, comparing the cognitive intensity of a psychiatric evaluation with the technical skill of a hernia repair. The Harvard study was revolutionary. It promised to level the playing field, suggesting that cognitive services, the thinking and talking that comprises primary care and mental health, were vastly undervalued relative to surgical procedures. Had Hsiao’s original recommendations been implemented purely, the income gap between generalists and specialists might have narrowed significantly. But the administrative complexity of assigning values to over 7,000 Current Procedural Terminology codes overwhelmed the Health Care Financing Administration. Into this administrative vacuum stepped the American Medical Association. The AMA, fearing that the government would unilaterally set prices, proposed a “partnership.” They would convene a committee of
